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Jones v University of Warwick, Court of Appeal, 4 February 2003

12 February 2003
The issues

Evidence – video evidence – surveillance.

The facts

The Claimant had what appeared to be a minor accident at work, when she dropped a full cash box with a broken lid onto her right wrist causing a small cut in the web between fourth and fifth fingers of her right hand. She alleged that she had developed a focal dystonia and had a special damage claim in excess of £135,000.00. Liability was not in issue. The Defendant obtained video evidence on two occasions and obtained access to the Claimant’s home by posing as a market researcher. On the second occasion, the Claimant was filmed in public on the 21st January and 30th March 2001. Only the film taken on the first two occasions (in November 1999 and January 2000) was in dispute, the Claimant alleging that the Defendant should not be entitled to rely upon it. The District Judge refused to allow the evidence in. Judge Harris on Appeal, admitted the evidence. The Claimant appealed.

The decision

1. There were conflicting issues of public policy. On the one hand, the approach of the Judge in finding that if a party was making an inflated or unjustified claim, then it was both just and fair that he should be prevented and if necessary by misleading him in a comparable manner to the way in which he misled people, was consistent with the approach that would have been adopted before the CPR and the Human Rights Act.

On the other hand, there was an equally important public law issue relating to Article 8 and the manner in which the evidence had been obtained. The Claimant relied on Article 8 and the duty of the Court as a Public Authority to act in accordance with its requirements. The Court had to act in a manner that was compatible with the Claimant’s Article 8 rights. However, the Strasbourg Jurisprudence made it clear that the convention did not decide what the consequence of evidence being obtained in Article 8 was to be. If therefore, the Court breached Article 8.1 by making an Order to allow the evidence, it would be acting within its rights within Article 8.2 in doing so (“there shall be no interference by a Public Authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security%u2026″)

2. How was the Court then to exercise its discretion and weigh the two conflicting public interests?

Different weights would be attached to each according to the circumstances. This was not a situation where the gravity of the breach of Article 8 was so outrageous as to justify the Defence being struck out. The case would therefore be tried and it would be artificial to exclude relevant evidence before the Judge who had to try it. The evidence would be admitted, although the Court wished to make it clear that the conduct of the Insurers was improper and unjustified. The commission of trespass and a contravention of the Claimant’s privacy was not justifiable by the Insurers desire to achieve a just result. In this particular case, the evidence could have been obtained by other means.

The Court would mark its disapproval of the Insurers conduct by a Costs Order and the Defendants would be ordered to pay the costs of the proceedings necessary to resolve this issue before the District Judge, Judge Harris and the Court of Appeal.

Appeal dismissed (subject to further argument on costs).

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